Category Archives: Water Quality

Dereliction of Duty: SWCB Chair Did Not Understand Authority

Dominion Pipeline Monitoring Coalition has revealed that the Chair of the State Water Control Board did not understand the authority of the Board, and therefore the votes on the Mountain Valley and Atlantic Coast Pipelines were not properly informed by law.

DPMC reports they have learned that Robert Dunn, Chairman of the Virginia State Water Control Board, did not understand the ramifications of the Board’s actions on water quality certifications for the Mountain Valley Pipeline (MVP) and Atlantic Coast Pipeline (ACP). This shocking information calls the Board’s process and decisions into serious question. Chairman Dunn’s failure to inform himself of the facts about the Board’s authority before taking votes on these enormously damaging and far-reaching projects is an outrageous dereliction of duty.

Dunn sent an email to the Richmond Times Dispatch saying:

Read your article in today‘s Richmond TD.  You stated someone cast a [sic] anti-pipeline vote and someone cast a pro-pipeline vote.  I do not believe the State Water Control Board has the authority to approve or disapprove the pipeline.  The vote was not for or against the pipeline. Do you understand what the SWCB voted on?  I believe the vote had to deal with permits to address water quality and standards.  Question for you:  Does or can the pipeline be built if the SWCB does not grant a permit??  If so, who has control?  In other words does SWCB action have ability to stop the pipeline??? (emphasis added by DPMC)

Of course, the legal reality is that the Clean Water Act gives the state an absolute veto authority over any federally-licensed project that might violate its water quality requirements. The information submitted for the Board’s consideration before any votes were taken contains detailed legal analyses of the state’s authorities and role in regard to the pipeline processes.  Thousands of people throughout Virginia understand that states have the power to deny approvals and thereby stop bad projects—clearly, Chairman Dunn does not.

Dunn’s question: “Does or can the pipeline be built if the SWCB does not grant a permit??” shows a failure to carry out his duty to understand the laws and regulations he’s charged with applying. If Mr. Dunn had questions about the scope of the Board’s authority, he should have sought the answer from those involved in the process and the official record upon which he was obligated to base his votes. And he should have made those inquiries before participating in the Board’s decisions, not months after taking his first vote on the pipeline certifications and after three Board meetings where these issues were discussed.

Dunn’s failure to do what was necessary to understand his proper role as a Board member and, therefore, his willingness to cast votes without learning the facts and law that should have governed him should disqualify him from continued service on the Board. We call on Mr. Dunn to resign immediately. If Dunn fails to do so, Governor Northam must act now to remove him from the Board and replace him with a person who will do his or her duty.

For more information, see DPMC’s article, Dereliction of Duty
 

Hurricane Could Devastate Pipeline Projects

A September 11, 2018 Washington Post article, Hurricane could devastate Virginia pipeline project that is already struggling with changing weather, points out that the wet summer of 2018 “has already overcome some efforts to prevent runoff and erosion” along then Mountain Valley Pipeline route, and the Atlantic Coast Pipeline will face similar problems if construction begins on that.

State officials say that even if the projects meet all construction guidelines, “those guidelines are based on standards that do not account for recent changes in weather patterns. …. In some cases, a level of rain that once may have occurred every two years has instead happened more than once in a month, staff members said. ‘There have certainly been conversations that given precipitation and climatic changes that . . . maybe there should be a different standard, but at this moment that’s what your regulation says,’ Melanie Davenport, the director of water permitting, told the [State Water Control] board.”

Department of Environmental Quality officials, their numbers reduced after a decade of budget and staff cuts, are unable to monitor the construction properly, especially given the steep and rough terrain and the many stream crossings of both the MVP and ACP.

Erosion controls have already proved inadequate for current levels of rainfall, and pipeline zones could be devastated by Florence. David Sligh, who is retired from the Virginia Department of Environmental Quality and now works with the Wild Virginia advocacy group, spoke to the Post: “‘I don’t believe they can, in some of these circumstances, do anything that would be adequate,’ he said. ‘That’s the real crime here, if I can use that word. People have known, the companies have known, DEQ has known that the pollution control measures are inadequate. The fact they’ve been allowed to go forward makes me very angry.'”

250 Areas Where Sediment Has Left MVP Construction Area


On September 9, 2018, concerned citizens, environmentalists, and veterans volunteered to document over 12 miles of the Mountain Valley Pipeline. Hiking for 8 hours and taking over 1000 photos of damages caused directly by MVP, volunteers identified and documented 250 areas where sediment has left the construction area impacting water sources and surrounding farms.

Area residents report that waterbars are already full, with hurricane rains yet to come.

Citizen Observers Continue to Document Violations


As construction on the Mountain Valley Pipeline ramps up again (although in some places it never actually ceased, despite the stop work order), citizen observers have and will continue to document the many and ongoing MVP violations of Erosion and Sediment Control Standards specified by the Virginia Department of Environmental Quality and its State Water Control Board.

For example, on-site in the same location that DEQ had recently inspected, the Virginia Pipeline Violations team encountered multiple, extensive mudslides, in some places thick, wet mud nearly a foot deep, washing from the construction area – in the same location where DEQ/MVP inspectors claimed on August 21 that there was no evidence of silt leaving the construction area. Concerned citizens relentlessly demanded that DEQ return, and on August 28 DEQ found violations on this location.

Shout-Out for Pipeline CSI and Mountain Valley Watch

An August 24, 2018, article in ThinkProgress, All-volunteer groups patrol construction of gas pipeline projects in Virginia, North Carolina, explains the background of the all-volunteer groups patrolling pipeline construction projects in West Virginia, Virginia, and North Carolina. The article includes extensive quotes from Rick Webb, David Sligh, and Kirk Bowers. Both Pipeline CSI and Mountain Valley Watch were created to monitor construction of the Atlantic Coast and Mountain Valley Pipelines, with trained volunteers essentially serving as citizen regulatory agencies, since the state regulatory agencies have neither the staff nor the will to monitor the massive projects as needed.

“In some cases, these volunteer monitoring groups have gathered more information on the pipelines’ impact on the environment and private lands than the regulators that are paid to monitor the projects. The mission of these all-volunteer oversight groups is to make sure laws are obeyed and no corners are cut during construction. And if the volunteers do their jobs well enough, they hope to provide enough evidence of violations to force regulators to issue permanent stop-work orders on the projects.”

A trained group of experts are monitoring and documenting problems in water quality, erosion and sedimentation control, and runoff with sound scientific results and “evidence grade” information – information strong enough to use in court. Often the Virginia Department of Environmental Quality has been unable to get in on-site and observe problems, and only knows of violations because citizen observers are in the field doing the work with on-the-ground monitoring and aerial surveys.

“With previous construction projects, inspectors with the Virginia DEQ would, as Webb described, apologetically tell pipeline construction crews that the U.S. Environmental Protection Agency was forcing them to keep close tabs on their work. ‘Everybody blamed the EPA’ for making everyone do extra work, Webb said. With the creation of the Pipeline CSI, ‘they can blame us,’ he noted.”

Information on the Pipeline CSI here.

Information on Mountain Valley Watch here or on Facebook.

Virginia State Water Control Board Meeting Actions


At its meeting on Tuesday August 21, 2018, the Virginia State Water Control Board received a report from the Department of Environmental Quality regarding the recent Public Comment Period on the Adequacy of the US Army Corps of Engineers NWP 12 Review of Stream Crossings for the Atlantic Coast Pipeline and the Mountain Valley Pipeline.

Although earlier reports indicated attendees would not be allowed to speak, the Board did allow 30 minutes of public comment from selected individuals – following the 2 hour presentation from DEQ in which, as noted by Chesapeake Climate Action Network, “The Department of Environmental Quality, headed by the controversial David Paylor, continued to strongly recommend that the board allow pipeline construction to proceed, despite mounting evidence that MVP and ACP have already harmed water quality.”  Many commenters urged the Board to take strong action in light of the problems unveiled by the public comments that were filed.   David Sligh, Conservation Director for Wild Virginia, told Board members, “The fact is that the Corps of Engineers’ permitting decision is not based on water quality standards. They explicitly say over and over that that is not their job, that’s the job of the states. . . For DEQ to tell you that they don’t intend to enforce certain parts of your water quality standards is atrocious and you should not accept that.”

Rather than taking any strong action on its own, the Board chose instead to adopt a motion calling for the DEQ “to aggressively enforce” the Erosion & Sediment and the Stormwater requirements for the ACP and the MVP.

It is not clear yet what effect the Board’s resolution will have.

The full text of the motion adopted by the Water Board follows:

The Board has reviewed the public comment received during the comment period, has heard the staff’s evaluation of the public comments and the sufficiency of the Nationwide Permit 12 to protect stream crossings impacted by the Mountain Valley Pipeline and the Atlantic Coast Pipeline.

The Board has also heard the staff’s report on the status of both projects regarding public complaints, compliance and enforcement and have considered advice of counsel as to the Board’s jurisdiction and authority.

Based on the foregoing considerations, the Board directs DEQ staff:

  1. to share relevant information from the public comment period with the Corps of Engineers for their consideration in administering and enforcing Nationwide Permit 12 to ensure protection of state waters;
  2. to continue aggressive compliance, inspection and enforcement activities to the maximum extent of its authority, and to include incorporation of erosion and sediment measures required by the Department of Mines, Minerals and Energy where they are relevant and to the extent that they are more stringent; and
  3. to respond promptly and effectively to verified public complaints of violations.

Staff reports presented to the SWCB are here.

The Richmond Times-Dispatch report of the meeting says, “The water board narrowly defeated, 4-3, a motion to modify or revoke the state’s certification of a nationwide permit to oversee more than 1,000 water crossings by the Mountain Valley and Atlantic Coast pipelines, but agreed unanimously to require more rigorous enforcement of state standards to protect water quality. …. The water board’s action still dismayed a capacity crowd of pipeline opponents who expressed their distrust of the Virginia Department of Environmental Quality throughout a tense, nearly four-hour meeting that they interrupted repeatedly to challenge statements by regulatory staff. …. But some water board members appeared skeptical of the state’s ability to protect water quality from sedimentation, after Melanie Davenport, DEQ’s director of water quality permitting, said the state does not have a way to measure or enforce sediment limits in waterways. ‘That’s really not reasonable assurance we are protecting the water quality,’ said Roberta A. Kellam, a board member from the Eastern Shore. Kellam joined two other members of the seven-member board in supporting an unsuccessful motion to hold a formal hearing on whether to revoke or amend certification of the national permit, which gives regulatory oversight of stream crossings to the Army Corps of Engineers instead of the state.”

Read the statement from Chesapeake Climate Action Network, in which CCAN General Counsel Anne Havemann says, “Instead of requiring an individual review, the Board instead called on DEQ to conduct aggressive compliance efforts. While we are still reviewing the Board’s decision it appears to have no teeth, and could allow sediment to continue to be dumped into the water with impunity. In the midst of public outcry and ongoing harm to water quality, we cannot applaud a decision that merely requires the DEQ do the job it should have been doing all along.  Today is a shameful day for David Paylor’s Department of Environmental Quality, and a sad day for Virginians. But, the fight is not over. We will continue taking these pipelines to court. We are confident that the federal courts will continue to overturn the insufficient permits for these pipelines, and evidence will prove once and for all that these pipelines should never be built.”

Press release from Appalachian Voices.

Statement from POWHR Coalition.  Points out that “Several members of the Board — Roberta Kellam, Nissa Dean, and Robert Wayland — supported a motion to initiate the formal hearing process to consider amending or revoking the permits for the two pipelines. The motion lost on a 3-4 vote, with Southwest Virginia’s own representative, Lou-Ann Jessee Wallace, voting against the motion.”

Statement from the Chesapeake Bay Foundation.

Southern Environmental Law Center senior attorney Greg Buppert said, “We have seen firsthand that pipeline construction in Virginia cannot be done without causing serious and permanent sedimentation problems to rivers and streams.  The people of the commonwealth deserve better than blanket assurances that everything will be OK when the facts on the ground show that they are not.”

Following are videos from the meeting.

From Appalachians Against Pipelines (1 hour 12 minutes):

From Appalachian Voices (3 hours 46 minutes):

Closing comments, from Marie Eve Robbins (58 minutes):

Richard Averitt’s reaction (1 minute 30 seconds)